842 N.W.2d 167
Neb. Ct. App.2014Background
- Undercover investigator Wilmes (posing as “Chris”) arranged drug buys by recorded calls/texts with a seller known as “Chicago.” Multiple meetings occurred near 14th & C Streets in Lincoln, Nebraska.
- On May 31, 2011, Wilmes bought methamphetamine from Rabbeca Seaman after meeting a male who identified Seaman as the supplier. On June 14, 2011, defendant John T. Warrack (tattooed "Chicago") met Wilmes, took $200 to obtain drugs (leaving keys as collateral), but did not return with drugs.
- Warrack was later arrested on a theft warrant after voluntarily stepping from his porch to the sidewalk to speak with officers; he made inculpatory statements in custody admitting he “set it up” and “hooked [Chris] up with [Seaman].”
- Warrack was charged with aiding and abetting delivery of methamphetamine within 1,000 feet of a school and attempted delivery of methamphetamine. A jury convicted him on both counts and the district court denied his motion to suppress his statements.
- On appeal Warrack challenged (1) the denial of the suppression motion (illegal arrest/curtilage), (2) the admission/foundation of a distance measurement, (3) sufficiency of the evidence on identity, intent, and distance-from-school, and (4) multiple ineffective-assistance claims. The Nebraska Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to suppress (illegal arrest/curtilage) | State: Officers lawfully approached porch, identified themselves, and arrested after Warrack voluntarily stepped onto sidewalk. | Warrack: Officers trespassed into curtilage/porch area (Jardines) making arrest unlawful and statements inadmissible. | Officers’ brief presence on porch like a visitor was permissible; Warrack voluntarily left porch and had no expectation of privacy on sidewalk. Arrest lawful; suppression denied. |
| Foundational objection to distance testimony | State: Officer Kozian’s Lidar-based measurements and map supported distance testimony. | Warrack: Insufficient foundation for Kozian’s estimate and map scale; testimony unreliable. | Exhibit (aerial map) was admitted without objection; Kozian’s estimate credibility for jury. Overruling of objection not an abuse of discretion. |
| Sufficiency of evidence (identity, intent, distance) | State: Voice ID, Seaman’s testimony, Warrack’s admissions, map/Lidar measurements support convictions for aiding/abetting and attempt. | Warrack: Testimony inconsistent/unreliable; insufficient proof he was “Chicago,” knew intent, or that transaction was within 1,000 feet. | Viewed in light most favorable to State, evidence sufficient on identity, intent/abetting, and distance. Convictions affirmed. |
| Ineffective assistance of counsel (multiple failures) | Warrack: Counsel failed to probe juror racial bias, consult, ensure competency, request limiting instruction, obtain ruling on photo of tattoo, or file new-trial motion. | State: Warrack failed to allege prejudice or how outcome would differ; allegations conclusory. | Claims rejected: appellant did not show both deficient performance and resulting prejudice; allegations insufficient. |
Key Cases Cited
- Florida v. Jardines, 133 S. Ct. 1409 (2013) (use of drug-sniffing dog on porch was a Fourth Amendment search)
- State v. Alarcon-Chavez, 284 Neb. 322 (Neb. 2012) (standard of review on suppression: factual findings for clear error; legal questions reviewed de novo)
- State v. Ramaekers, 257 Neb. 391 (Neb. 1999) (Fourth Amendment protects people not places; expectation of privacy/curtilage)
- State v. Boysaw, 228 Neb. 316 (Neb. 1988) (warrantless arrest lawful after defendant voluntarily stepped outside residence)
- State v. Ramsay, 257 Neb. 430 (Neb. 1999) (aiding and abetting liability; mere presence insufficient; participation inferred from words/acts)
- State v. Babbitt, 277 Neb. 327 (Neb. 2009) (attempt requires substantial step; question for jury)
- State v. Derr, 19 Neb. App. 326 (Neb. Ct. App. 2011) (ineffective-assistance claims must allege both deficiency and prejudice)
- State v. Watt, 285 Neb. 647 (Neb. 2013) (credibility and evidentiary weight are jury functions)